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Alabama’s new law permits the expungement of criminal records

In April of 2014, the Alabama legislature approved a measure that permits the expungement of the criminal records of persons charged—but not convicted—of misdemeanors or nonviolent felonies. Governor Robert Bentley signed the bill three months ago, and the so-called “Expungement Law” went into effect on July 7, 2014.

What kinds of criminal records are affected?

Individuals can now clear their names from charges of having committed misdemeanor criminal offenses, traffic violations, or municipal ordinance violations. To expunge a record, the charged individual may petition the criminal division of the circuit court in the county in which the charge was filed, when any of the following circumstances exist:

The charge was dismissed with prejudice.

The charge was “no-billed” by a grand jury.

The person was found not guilty of the charge.

The charge was dismissed without prejudice more than two years ago, was not refiled, and the person has not been convicted of any other criminal misdemeanor or felony, any violation, or any traffic violation, excluding minor traffic violations, during the previous two years.

What about felonies?

The law only permits the expungement of nonviolent felonies in the following instances:

The charge was dismissed with prejudice.

The charge was “no-billed” by a grand jury.

The person was found not guilty of the charge.

The charge was dismissed after successful completion of a drug court program, mental health court program, diversion program, veteran’s court, or any court-approved deferred prosecution program after one year from successful completion.

The charge was dismissed without prejudice over five years ago, not refiled, and the person has not been convicted of any other criminal misdemeanor or felony, any violation, or any traffic violation, excluding minor traffic violations, during the previous five years.

Ninety days have passed from disposition under (1)-(3), or if the charge was nolle prossed and not refiled.

For nonviolent felonies, expungement can be a court-ordered condition of one of the listed rehabilitation programs.

The district attorney may object. However, if the district attorney does not object, the court may grant the petition without a hearing.

What happens next?

Once the court grants the petition, “the proceedings regarding the charge shall be deemed never to have occurred.” The law mandates the reply to any inquiry must be that “no record exists on the matter.” Once expunged, the Alabama Criminal Justice Information Center will archive the expunged records in a protected file.

What does this new law mean for employers?

Under the law, individuals “shall not have to disclose the fact of the record” or any matter related to it on any job or credit application. But, they have a duty to disclose the fact of the record to government regulatory or licensing agencies, utilities and their agents and affiliates, and banks or other financial institutions. Those entities then may seek inspection of the expunged records.

The statute provides immunity from civil damages liability for employers that hire, contract with, or hold any business relationship with an individual and are unaware of a criminal record due to its expungement.

Since issuing its Guidance on the Consideration of Arrest and Conviction Records in 2012, the U.S. Equal Employment Opportunity Commission (EEOC) has encouraged “individualized assessment” of applicants and employees and advised against basing employment decisions solely on the mere existence of an arrest or conviction.

But keep an eye on an important lawsuit, State of Texas v. EEOC, No. 5:13-cv-00255, pending before the U.S. District Court for the Northern District of Texas. The State of Texas has asked the court to enjoin the enforcement of the EEOC Guidance, arguing that state law prevents individuals who commit certain crimes from holding positions of public trust (e.g., in law enforcement) and that the EEOC overstepped its authority when it promulgated the Guidance. The EEOC has moved to dismiss the claim, but the court has yet to rule.

Regardless of that case’s outcome, an employee or job applicant in Alabama now has a more limited duty to disclose a misdemeanor arrest that has been expunged in the state. Employers should continue to proceed with caution when hiring, and develop background check policies that weigh business needs against possible discrimination claims.

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